A protest held in the private home of Berkeley Dean Erwin Chemerinsky is igniting discussion on the validity of the First Amendment. During a dinner hosted by Chemerinsky and his wife, Catherine Fisk, for graduating law students, Malak Afaneh, leader of Berkeley Law Students for Justice in Palestine, arrived uninvited and proceeded to protest. This act has spurred a discourse over the distinction between the protected exercise of free speech and the infringement of personal property.
In the lead-up to the event, Afaneh and her cohorts threatened to protest the dinners unless they were cancelled. The group’s grievance lay with an allegedly anti-Semitic poster concerning the events, which declared, “No dinner with Zionist Chem while Gaza starves.” Despite the intensity of the sentiment, Chemerinsky refused to intervene, asserting that the group’s right to free speech was upheld under the First Amendment.
This interpretation, however, proved problematic. Despite his anticipation of a peaceful, non-disruptive protest outside his home, Chemerinsky was faced with an uninvited protestor within his residence. The tenets of the First Amendment do not extend to a citizen’s right to protest within another’s private home—public property or university premises being altogether different. It is noteworthy to mention that Chemerinsky and his wife do not live in university-provided housing, negating claims that their residence qualifies as public property.
Online reactions to the incident include accusations of Fisk having “assaulted” Afaneh. However, given that the California Castle Doctrine is still in effect, the claim of “homeowner tried to wrestle the microphone from me” is unlikely to hold much weight. Chemerinsky emphasized that his home is not a forum for free speech, and any future disruptions will be reported to student conduct.
Notably, Chemerinsky is no stranger to the subject, having previously defended the right of student groups to exclude speakers based upon their views whilst ensuring reasonable measures are in place to allow protest without disrupting groups inviting opposing speakers. The debate still ensues, however, on whether structures that penalize the traditional exercise of the right to protest merely catalyze the shift from proper to improper exercise.
Read the full report on Above the Law for more detailed coverage on this issue.